C.B. ROOT and Glen Air Trust, acting by and through its sole trustee, James F. Root v. CITY OF MOBILE
1910260
Supreme Court of Alabama
Jan. 10, 1992
592 So. 2d 1051
C.B. Root and Glen Air Trust, acting by and through its sole trustee, James F. Root, appeal from the trial court‘s order denying their motion to intervene.1 We affirm.
“In all of its dealings with the City of Mobile with respect to the [contract between the City and Midsouth], Midsouth shall have the express power and authority to act for and in behalf of [C.B. Root] as if it were the sole owner of [the contract]. . . .”
Thereafter, the contract between Midsouth and C.B. Root was amended to reflect that Root had assigned all of his interest in the project to the Glen Air Trust (“the Trust“). This amendment effectively substituted the Trust in the place of C.B. Root in the contract that was originally executed by C.B. Root and Midsouth.
On November 4, 1990, the City sued Midsouth, alleging that Midsouth had failed to perform under the contract between Midsouth and the City and seeking a judgment rescinding that contract on the ground of nonperformance. Midsouth answered the complaint, raising certain affirmative defenses, and filed a counterclaim, alleging that the City had breached the contract and seeking, alternatively, specific performance by the City, damages for breach of contract, or an extension of time for performance. The City answered the counterclaim, raising certain affirmative defenses of its own. The case was initially scheduled for trial on May 29, 1991, but was later rescheduled for September 25, 1991. On September 13, 1991, C.B. Root and the Trust, acting by and through its sole trustee, James F. Root, filed a motion to postpone the trial for “at least” 90 days and a motion to intervene in the action, pursuant to
“The applicants’ motion to intervene is governed by
Ala.R.Civ.P. 24(a) , which, among other things, allows for intervention of right ‘upon timely application,’ where the party seeking intervention has an interest in the transaction which is the subject of the action, ‘unless the applicant‘s interest is adequately represented by existing parties.’ The applicants’ motion was not timely filed. Applicants’ interest in the subject transaction is adequately represented by defendant Midsouth Land Company.“The applicants’ motion to intervene was filed more than 10 months after this action was filed, after significant discovery, and less than two weeks before [the] scheduled trial date. The motion is therefore not timely. Additionally, the applicants’ interest in the subject transaction is adequately represented by defendant Midsouth Land Company. The applicants’ interest is nearly identical to that of the defendant, [Midsouth,] and counsel for [Midsouth] is fully capable of both defending this action and prosecuting its counterclaim.”
This appeal followed.2
Generally a ruling on a motion to intervene is within the sound discretion of the trial court and will not be disturbed on appeal unless there is an abuse of discretion. Dearmon v. Dearmon, 492 So. 2d 1004 (Ala. 1986). See, also, Randolph County v. Thompson, 502 So. 2d 357, 364 (Ala. 1987), wherein this Court specifically noted that a trial court‘s ruling with respect to the timeliness of a motion to intervene is governed by an abuse-of-discretion standard:
“Since the rule, itself, is silent concerning what constitutes a ‘timely application,’ it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court. See Strousse v. Strousse, 56 Ala. App. 436, 322 So. 2d 726 (1975). See also McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1072 (5th Cir. 1970).”
Initially, we note the argument of C.B. Root and the Trust that
“Upon timely application, anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.”
The purpose of
In the present case, the record indicates that C.B. Root divested himself of any interest in the development project when he assigned all of his interest to the Trust. Although the trial court did not mention this in its order, it would appear that C.B. Root did not have a sufficient interest in the “property or transaction which is the subject of the action” to authorize him to intervene. In any event, the trial court held that the motion to intervene was not timely. Specifically, it found that the motion was filed more than 10 months after the action was filed by the City, after significant discovery had taken place, and less than two weeks before the scheduled trial date. In addition, the trial court found that the interests of the Trust are “nearly identical” to those of Midsouth and, therefore, concluded that Midsouth would adequately represent the Trust‘s interests. We conclude that these findings are supported by the record and that the trial court did not abuse its discretion in denying the motion. Although the Trust has a significant interest in the outcome of this litigation, we agree with the trial court‘s implicit finding that the granting of the motion to intervene would, under the circumstances of this case, do nothing more than cause an unnecessary delay that would work to the prejudice of the City. Midsouth has a contractual duty to represent the Trust‘s interests in the action, and there is no indication
“The motion to intervene also has attached to it the proposed answer of the intervenor-defendants, with affirmative defenses and with a counterclaim setting forth three causes of action, which answer, affirmative defenses, and counterclaim are all substantially the same as the comparable pleadings filed by Midsouth in response to the complaint.”
(Emphasis added.)
For the foregoing reasons, we hold that the trial court did not abuse its discretion in denying the motion to intervene and, therefore, that the trial court‘s order is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.